Subpoena-thon: COR Deposition Notices are Unnecessary

There are some who, when issuing a subpoena for records, will also then also notice the depositions of every custodian of records that was just subpoenaed.  The depositions are typically scheduled 10-15 minutes apart.  In all the cases I have handled, I am only aware of one such deposition ever actually occurring. Are COR deposition notices required?

The practice of issuing subpoenas and noticing COR depositions seems to be a holdover from a version of FRCP 45 that was replaced in 1991.  Greenberg v. United States was a FTCA suit and the government wanted medical records from a treating physician.[1]  It subpoenaed the treating physician duces tecum for a deposition.  However, the subpoena stated “[y]ou may avoid appearing at this deposition by providing a certified or notarized copy of the records requested to the Assistant U.S. Attorney named below on or before August 10, 1990, at 11:00 a.m.”

At the time, Rule 45 did not permit this.  “It is true that a subpoena duces tecum served upon a non-party, and not in connection with a deposition of that party, is not permitted by the Federal Rules.”  Rule 45(a) stated at the time “[e]very subpoena … shall command each person to whom it is directed to attend and give testimony at a time and place therein specified.”  Rule 45(b) added that a subpoena “may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein….”  In other words, Rule 45 was intended to allow parties to obtain depositions from non-parties and obtain records in conjunction with those depositions.  Greenberg noted the “power to issue a subpoena duces tecum to a non-party is by the language of Rule 45 corollary to the power to depose non-party witnesses.”

Other cases echoed this logic.  In Bowers v. Buchanan a witness was deposed and a subpoena duces tecum was subsequently served on the witness.  The subpoena was quashed because “a subpoena duces tecum is limited to use in conjunction with a deposition and trial.”[2]  Turner v. Parsons also quashed a subpoena that sought only documents.  Rule 45 “permits a non-party to be subpoenaed for a deposition. Additionally, this non-party can be required to bring certain documents to a deposition. Nowhere in the rule is it stated that documents can be subpoenaed alone, that is, without requesting their production in conjunction with a deposition or trial.”[3]  Ghandi v. Police Dept. of Detroit held “Rule 45 may not be invoked to obtain documentary evidence from non-parties prior to trial if the party invoking the rule has no intention of taking the deposition of the person to whom the subpoena is directed.”[4]

Rule 45 was amended in 1991 to eliminate this waste of resources.  One of the Advisory Committee’s goals for the revisions was “to facilitate access outside the deposition procedure provided by Rule 30 to documents and other information in the possession of persons who are not parties.”  The goal was accomplished by revising Rule 45(a)(1).  The 1991 version authorized issuing a subpoena “to compel a non-party to produce evidence independent of any deposition. This revision spares the necessity of a deposition of the custodian of evidentiary material required to be produced.”  Further, the Advisory Committee stated additional subpoenas could issue.  “A party seeking additional production from a person subject to such a subpoena may serve an additional subpoena requiring additional production at the same time and place.”

As FRCP 45 currently reads, a subpoena must do at least one of three things.  “[C]ommand each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises.”  Rule 45(a)(1)(B)-(D) then discuss those three options further.  This is substantively similar to NRCP 45(a)(1)(C) requiring subpoenas to “command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified.”

All of this means the requirement for COR deposition notices ended in the federal courts 25 years ago. Please get with the program.

[1] No. 89-2390-MC, 1990 U.S. Dist. LEXIS 12091 (D. Mass. Sep. 7, 1990).
[2] 110 F.R.D. 405, 406 (S.D.W.Va. 1986).
[3] 596 F. Supp. 185. 186 (E.D.Pa. 1984).
[4] 74 F.R.D. 115, 118 n.3 (E.D.Mich. 1977).